Bureaucracies tend to creek and groan when they have something new to do, and the creaking and groaning was deafening with MOVE Act implementation. Take the failure of the Department of Justice Voting Section to ever respond to the Pentagon’s draft final waiver guidance for states. FVAP officials wanted to give states early guidance about what would or would not justify a waiver, and the Pentagon wanted to publish the information well in advance of the July 28 deadline for states to submit waiver applications. So FVAP sent draft guidance to bureaucrats in the Voting Section last spring.
While they waited for the DOJ, the Pentagon had to issue “interim” guidance on May 24, 2010. It foreshadowed the problem:
Please be advised that [FVAP] will not to be able to provide guidance … until detailed guidance is available.
In a dereliction of their responsibility to provide advice to FVAP, officials in the Voting Section allowed the Pentagon draft to gather dust. In fact, the Department of Justice never replied. As a result, states never received the long-promised final waiver guidance, and were forced to submit waiver applications at the last minute without any hint of administration policy.
Back in March 2010, Hawaii was begging for policy clarity from the Pentagon. Scott Nago, the Hawaii chief election official, wrote to them:
We were told your office was still in consultation with the attorney general and that we would be informed once that consultation was complete. It is our understanding that no application has been submitted by any jurisdiction with a late primary election as they are waiting for further guidance from your office.
We all are still waiting. This abdication of MOVE Act duty by DOJ officials may explain why this article about waiver decisions is appearing in late August, instead of late May.
This example also demonstrates the difference between a bureaucracy run by Robert Gates, and one run by Eric Holder. General Holder should find out on whose desk the Pentagon’s draft was allowed to gather dust for months, and he should take swift and appropriate action against the bureaucrat. Because states submitted late waivers, full implementation of MOVE waiver policy was delayed to the outer limits of the statute.
To complicate matters further, DOJ officials were actively undermining MOVE Act protections throughout the spring. Not only did one Voting Section official tell states that the provisions of the new law were “vague” and a lawsuit “was a last resort,” an analysis Senator John Cornyn has characterized as laughable, they encouraged states to apply for waivers.
State election officials who were in attendance for Justice Department presentations said they couldn’t believe what they were hearing.
Worse yet, these same Justice Department officials told multiple officials that once a MOVE waiver was granted, it might be permanent, carrying over to the 2012 presidential election, despite express statutory language to the contrary. Such staggeringly bad legal advice came from both political appointees as well as career attorneys in the Voting Section. So embarrassing was the position, that senior political DOJ appointees retreated from the position once Senator Cornyn heard about it.
The apologists for the waivers and lack of DOJ enforcement cite the fact this is a “transitional year,” a term that appears nowhere in the law. They say the waiver provisions contemplate a “late” primary. But every state with a late primary could have done something about it to comply with MOVE.
Florida did. Georgia did. Vermont did.
It was simply a question of legislative priorities, and states like New York, Massachusetts, and Colorado did nothing to fix the problem.
The ball is now in the Justice Department court once again. Will they sue the states like Colorado and Wisconsin who are blatantly noncompliant with the MOVE Act?
Ballots need to mail in just a few weeks to Iraq and Afghanistan. We all know who is breaking the law, right now. It isn’t rocket science. Every day that DOJ delays a lawsuit means some solider guarding a dangerous frontier will lose their vote. Shameful bureaucratic inaction by the DOJ in the days ahead will have real and tragic consequences. The attorney general should immediately order the Voting Section to file lawsuits against Colorado, Alaska, and Wisconsin.
It would take diligent Justice lawyers a day, at most, to draft and file a complaint. Our heroes serving overseas don’t have the luxury of going AWOL.